Vaughn v. City of Chicago

[Indigo]

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/11/police-interference-with-persons-self-defense-when-he-is-faced-with-imminent-danger-plus-failure-to-protect-him-against-the-danger-may-be-unconstitutional/

Police interference with person’s self-defense, when he is faced with imminent danger — plus failure to protect him against the danger — may be unconstitutional

By Eugene Volokh August 11 at 9:45 AM

From Vaughn v. City of Chicago (N.D. Ill. Aug. 5, 2014), the alleged facts:

And the legal analysis:

At the motion to dismiss stage, I must accept as true all well-pleaded allegations in the complaint and draw all reasonable inferences in Plaintiff’s favor.

On April 5, 2008, around 11:00 pm, Albert Vaughn, Jr. … was in the vicinity of 7033 South Throop Street in Chicago, Illinois when an altercation between two groups started in the street. Vaughn left the area before the four police officers who are named as defendants in this suit arrived at the scene.

While the police officers stood between the two groups trying to disperse the crowd, Vaughn returned to the scene in search of his younger brother. Vaughn was carrying a stick to protect himself and joined one of the groups. Upon noticing Vaughn, Officer Robert Cummings drew his gun and pointed it at Vaughn. Meanwhile, the other officer defendants ordered Vaughn to drop the stick. Vaughn complied.

When a man in the opposing group began yelling obscenities at Vaughn, he picked up the stick he had brought to the scene for self-protection. The officer defendants, who were standing within a few feet of Vaughn, once again ordered him to drop the stick. Vaughn complied.

The man who had been shouting obscenities at Vaughn then made his way through the crowd carrying a metal baseball bat. The defendant officers did not order the man to halt or drop the bat as he approached Vaughn. Instead, the officers simply watched as the man clubbed Vaughn in the head with the bat and then fled from the scene. Vaughn was transported to a local hospital where he was pronounced dead.

Vaughn’s father filed the present suit in his capacity as the administrator of his son’s estate.

“As a general matter … a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 197 (1989). “DeShaney, however,

the door open for liability in situations where the state creates a dangerous situation or renders citizens more vulnerable to danger.” The so-called “state-created danger” doctrine has three elements:

… “When courts speak of the state’s ‘increasing’ the danger of private violence, they mean the state did something that turned a potential danger into an actual one, rather than that it just stood by and did nothing to prevent private violence.”

First, in order for the Due Process Clause to impose upon a state the duty to protect its citizens, the state, by its affirmative acts, must create or increase a danger faced by an individual.

Second, the failure on the part of the state to protect an individual from such a danger must be the proximate cause of the injury to the individual.

Third, because the right to protection against state-created dangers is derived from the substantive component of the Due Process Clause, the state’s failure to protect the individual must shock the conscience.

Here, the complaint alleges that Defendants increased the danger facing Vaughn by ordering him, at gunpoint, to drop the stick he was carrying for self-protection. Defendants emphasize that they did not start the street altercation, force Vaughn to return to the scene, or place Vaughn’s assailant in the rival group. Defendants’ attempt to portray themselves as passive observers cannot be squared with the complaint, which plainly alleges that Defendants ordered Vaughn to drop his chosen means of self-protection during a heated altercation.

Defendants stress that Vaughn faced substantial danger — namely, the risk that a member of the rival group would attack him — with or without a stick in his hand. This argument falsely assumes that the state-created danger doctrine applies only when state actors turn a safe situation into a dangerous one. In fact, the doctrine also protects individuals against marginal increases in risk — i.e., placing someone who already faces danger in even greater peril.

At the motion to dismiss stage, Defendants are not entitled to the inference that their actions left Vaughn no worse off than when he returned to the scene with a stick in hand. It is plausible that Vaughn was safer with a stick in his hand than he was after Defendants ordered him to drop it. In simple terms, Defendants made Vaughn an easier target for would-be assailants in the rival group than he otherwise would have been. This marginal increase in risk is sufficient to state a plausible state-created danger claim.

Defendants also argue that even if they exposed Vaughn to an increased risk of private violence, they did not render him completely defenseless. After all, Defendants contend, Vaughn could have walked away from the scene after they ordered him to drop his stick. This argument resembles an assumption of risk defense that Vaughn need not overcome at the pleading stage. Moreover, the Seventh Circuit has held that “a state can be held to have violated due process by placing a person in a position of heightened danger without cutting off other avenues of aid.” …

In sum, the complaint plausibly alleges that Defendants placed Vaughn in a position of increased danger, thereby triggering a duty to protect him from private violence….

The second element of a state-created danger claim is proximate causation. Defendants assert in conclusory fashion that ordering Vaughn to drop his stick and watching someone attack him with a baseball bat were not the proximate cause of his injuries. This argument is underdeveloped and therefore waived.

The “shocks the conscience” element of a state-created danger claim “is a reminder that liability for a constitutional tort requires proof that the defendant acted (or failed to act) not merely negligently but recklessly (equivalently, with deliberate indifference to the risk of harm that he was creating).” … “The cases generally understand ‘recklessness’ to mean knowledge of a serious risk to another person, coupled with failure to avert the risk though it could easily have been averted.”

Accepting the complaint as true, Defendants were recklessly indifferent to Vaughn’s safety. This is not a case where state actors were at worst negligent in protecting an individual from state-created dangers. The combination of ordering Vaughn to drop a stick he intended to use for self-protection and then watching — at a distance of only a few feet — while someone beat him to death with a baseball bat shows a reckless disregard for his life that shocks the conscience….

[Footnote: I take no position on the parties' side debate over whether Vaughn had a clearly established Second Amendment right to possess a stick for self-defense during a street altercation.]

[A]n individual has clearly established rights not be stranded … or trapped … in dangerous situations that state actors either created or made more perilous. Plaintiff’s claim falls within this clearly established line of cases. Defendants stranded Vaughn in a dangerous situation by ordering him to drop the object he intended to use for self-protection and simply watching while he was bludgeoned to death. The same police actions placed Vaughn in a trap of sorts by making him an easy target for the man who killed him. In short, Defendants are not entitled to dismissal on qualified immunity grounds because Plaintiff’s claim is based on clearly established due process rights…

 

[Double-J]

I would not want to be one of the officers who stood by and did nothing. It seems through this ruling that they may be culpable.

[hgmeyer]

A jury is not going to like this.... CPD better settle quick and big...

[Tango7]

Awful situation, great decision.

[Gamma]

This could be a huge case for application in a much larger sense to the right of self defense.

[chibooey]

This case at its present stage appears to me to be solely based upon the Plaintiff's statement and no defense has even been offered yet so I won't jump to conclusions about what really transpired. But I do wonder how this could affect all of those GFZ areas that do not provide a "reasonable and sufficient" amount of security as they are depriving us of our rights to self defense. This has the potential to kick the Moms and Bloomberg out of the game.

[jake8267]

This case at its present stage appears to me to be solely based upon the Plaintiff's statement and no defense has even been offered yet so I won't jump to conclusions about what really transpired. But I do wonder how this could affect all of those GFZ areas that do not provide a "reasonable and sufficient" amount of security as they are depriving us of our rights to self defense. This has the potential to kick the Moms and Bloomberg out of the game.

I agree, which is why if there looks to be a halfway decent chance of the plaintiff's winning Chicago will settle to avoid having a case decided along those lines.

[DoktorPaimon]

This case at its present stage appears to me to be solely based upon the Plaintiff's statement and no defense has even been offered yet so I won't jump to conclusions about what really transpired. But I do wonder how this could affect all of those GFZ areas that do not provide a "reasonable and sufficient" amount of security as they are depriving us of our rights to self defense. This has the potential to kick the Moms and Bloomberg out of the game.

 

Given CPD's history, where this happened, and that four cops couldn't manage to apprehend/shoot the assailant I have a lot of trouble imagining it didn't go down exactly as the plaintiff argues.

[chibooey]

 

This case at its present stage appears to me to be solely based upon the Plaintiff's statement and no defense has even been offered yet so I won't jump to conclusions about what really transpired. But I do wonder how this could affect all of those GFZ areas that do not provide a "reasonable and sufficient" amount of security as they are depriving us of our rights to self defense. This has the potential to kick the Moms and Bloomberg out of the game.

 

Given CPD's history, where this happened, and that four cops couldn't manage to apprehend/shoot the assailant I have a lot of trouble imagining it didn't go down exactly as the plaintiff argues.

 

The CPD that I am familiar with would never intentionally allow someone to be struck with a baseball bat and they would do their best to apprehend an offender who committed aggravated battery. That is not to say that this didn't happen exactly as the Plaintiff alleges. Have there been bad cops in Chicago? Absolutely. Do criminals lie? Absolutely. One side of a story doesn't mean that the truth is being told or that all facts are present. I won't jump to conclusions based upon perceived history.

 

Having lived in Chicago on and off for most of my 60 plus years I am very aware that we have some very bad areas (and the location of this incident is one of them) but for the most part Chicago is not a bad place to live. We have some lousy politicians and yes some bad cops. But for the most part those bad cops are few and far between and their fellow officers want them gone as much as we do. While a bad cop makes big headlines and tends to stick in peoples minds, we have to remember that Chicago has over 10,000 officers who are doing a great job.

 

I make no bones about it that I am a huge supporter of law enforcement. It is an extremely tough job. Yes they chose their careers but it can be much tougher job than many people expect. At the same time it can also be very rewarding job, it is a wonderful feeling to know that your actions saved lives and helped people. I would just ask that people keep an open mind about police officers in general and in particular Chicago Police Officers. Please try not to judge them by their political leadership. Judge them by your own personal interaction with them. Some members here may have had bad experiences with CPD, it shouldn't happen but we all know it does. It could happen with any police department. I would ask that you try to look a that incident from the police officers view, that doesn't excuse bad behavior on any officers part, but like us, they are human and make mistakes. Your negative feelings may be well justified and I am sorry for those experiences and I hope they never reoccur, but please try to look at the officers as individuals and don't stereotype the group.

 

I am not a Chicago Police Officer nor have I ever been, but I have many friends and family who are. I was a member of military law enforcement for over 20 years, and while it is different in the military, many aspects are the same. I have a huge amount of respect for what CPD officers go through daily but even I know that sometimes officers do the wrong thing and their bad behavior should not be excused. But that is the job of the courts and not me.

[DoktorPaimon]

 

 

This case at its present stage appears to me to be solely based upon the Plaintiff's statement and no defense has even been offered yet so I won't jump to conclusions about what really transpired. But I do wonder how this could affect all of those GFZ areas that do not provide a "reasonable and sufficient" amount of security as they are depriving us of our rights to self defense. This has the potential to kick the Moms and Bloomberg out of the game.

 

Given CPD's history, where this happened, and that four cops couldn't manage to apprehend/shoot the assailant I have a lot of trouble imagining it didn't go down exactly as the plaintiff argues.

 

The CPD that I am familiar with would never intentionally allow someone to be struck with a baseball bat and they would do their best to apprehend an offender who committed aggravated battery. That is not to say that this didn't happen exactly as the Plaintiff alleges. Have there been bad cops in Chicago? Absolutely. Do criminals lie? Absolutely. One side of a story doesn't mean that the truth is being told or that all facts are present. I won't jump to conclusions based upon perceived history.

 

Having lived in Chicago on and off for most of my 60 plus years I am very aware that we have some very bad areas (and the location of this incident is one of them) but for the most part Chicago is not a bad place to live. We have some lousy politicians and yes some bad cops. But for the most part those bad cops are few and far between and their fellow officers want them gone as much as we do. While a bad cop makes big headlines and tends to stick in peoples minds, we have to remember that Chicago has over 10,000 officers who are doing a great job.

 

I make no bones about it that I am a huge supporter of law enforcement. It is an extremely tough job. Yes they chose their careers but it can be much tougher job than many people expect. At the same time it can also be very rewarding job, it is a wonderful feeling to know that your actions saved lives and helped people. I would just ask that people keep an open mind about police officers in general and in particular Chicago Police Officers. Please try not to judge them by their political leadership. Judge them by your own personal interaction with them. Some members here may have had bad experiences with CPD, it shouldn't happen but we all know it does. It could happen with any police department. I would ask that you try to look a that incident from the police officers view, that doesn't excuse bad behavior on any officers part, but like us, they are human and make mistakes. Your negative feelings may be well justified and I am sorry for those experiences and I hope they never reoccur, but please try to look at the officers as individuals and don't stereotype the group.

 

I am not a Chicago Police Officer nor have I ever been, but I have many friends and family who are. I was a member of military law enforcement for over 20 years, and while it is different in the military, many aspects are the same. I have a huge amount of respect for what CPD officers go through daily but even I know that sometimes officers do the wrong thing and their bad behavior should not be excused. But that is the job of the courts and not me.

 

I am judging them by my personal interactions, as well as the interactions I observe in my community, those of my friends and family, and those that directly waste my taxes through constant brutality settlements. The CPD that I am familiar with is the one that just had to have the city issue $100m in bonds to cover a year's worth of misconduct and brutality settlements, the one that wracked up a half billion in settlements over the last ten years. You know, the guys who beat Jerimiah Mearday and then planted drugs on him after the cops who beat him were fired? The department that covered for Jon Burge for decades? The one that trains officers so well that they can't tell the difference between a cell phone and a handgun? The one that intimidates people who go to IA? The fun loving guys who try to cover up when one of their brothers beats a woman senseless for following the law and not serving him when he's drunk? The one that has fought tooth and nail to prevent the names of the worst police offenders from going public? The one where district commanders still stick guns in people's mouthes? Heck, the one where the person with the most excessive force complaints in the department rises to district commander in the first place?

 

 

Its a tough job, I know. So tough that last year there was a little under seven grand's worth of misconduct for every officer wearing a badge. I wonder what kind of dent half a billion dollars could have made in the unfunded police pension liabilities...

[TFC]

The reason we keep seeing suits like this is BECAUSE they settle out of court.
When someone loses big time, then the LEO community will have a huge incentive to proactively rid itself of the "10%" that's the cause of most of the problems.

[transplant]

Time for the tax payers to take in on the chin again

[chibooey]

Jerimiah Mearday was wronged in 1997 and the officers involved were punished. Mearday was given 1.75 million as payment for the officers misconduct. Some say his second arrest in 1997 was retribution for the officers being fired and I believe that MIGHT be possible but I really don't know the facts. I do know that ultimately the charges were dropped. But I also know is that Mearday was again arrested in 2005 in Glendale Heights for selling crack to an undercover police officer and he pled guilty to the charges.

 

As for Burge, we hear a lot about how bad he was in the media yet the only thing they ever charged him with was lying to the FBI. Again, I don't know if he and his crew did the things that are alledged so I won't jump to conclusions. I suspect they are guilty of somethings, but I also suspect that the media has blown it way out of proportion. He may be guilty of many things but he like everyone else deserves his day in court. And please remember that many of those settlements for police misconduct are only made because it was cheaper to pay than to have city attorneys working on cases and sitting in courts. It doesn't prove that the officers were guilty of anything. If the city did try a few of these cases and for the courts find in favor of the city because of proven lies, the city should go after those who filed the false complaints. Those individuals should be criminally prosecuted and the officers and the city should also sue them civilly. Then the number of false complaints might drop and the city wouldn't be settling needlessly. But I admit it is a narrow ledge that would need to be walked to ensure that only those filing false reports were held accountable. I also have no issues with officers being held personally accountable if they intentionally lie. It has to go both ways.

 

As for releasing information about brutality complaints I think that is totally wrong. They are allegations and not sustained facts. If an officer overstepped his authority, they should be criminally charged or at least punished by the department. If the allegations were not sustained then no information should be released. I don't condone lying and violating the law on either side and the reality is people are not normally charged when they file even obvious false reports. We the public are not the courts and neither is the media. Cases should be tried in courts in accordance with our laws and our constitution and we should accept the outcome of those trials no matter what our personal feelings are.

 

I never tried to hide that there are bad officers on CPD and in fact I stated that I have no doubt that there are some. But they considering the number of police officers in Chicago, the bad apples are in the definite minority compared. In the case of the OP, I didn't ask anyone to discount the plaintiffs case, I asked for people to keep an open mind, remember that only one side of the story has been told so far, and asked for people to wait for the courts to decide the truth.

 

We can find usually find examples to show our point of view on either side of these types of issues and everyone is entitled to their opinion. I have given mine and you have given yours. I am just thankful that I live in a country that allows us to share our opinions. We may not have a perfect system in the United States, but we are far better off than most.

[Hap]

The reason that Burge was only charged with lying is that the statute of limitations had run on the torture charges.

[BobPistol]

"The defendant officers did not order the man to halt or drop the bat as he approached Vaughn. Instead, the officers simply watched as the man clubbed Vaughn in the head with the bat and then fled from the scene."

 

The cops told Vaughn, under threat of being shot, to drop his stick but did not tell the other creep to drop his bat, nor did they even bother pointing their guns at the creep. That is unequal treatment under the law, plain and simple.

[Plinkermostly]

Devil's Advocate (or what 'protect' really means):

 

 

South v. Maryland, 59 U.S. (How.) 396, 15 L.Ed.433 (1856) (the U.S. Supreme Court ruled that local law enforcement had no duty to protect individuals).

[RacerDave6]

Devil's Advocate (or what 'protect' really means):

 

 

South v. Maryland, 59 U.S. (How.) 396, 15 L.Ed.433 (1856) (the U.S. Supreme Court ruled that local law enforcement had no duty to protect individuals).

True, but they also cannot do anything to make the situation worse. By forcing one party to disarm but not the other the police interference made the situation worse then it had been.

 

[kermit315]

"The defendant officers did not order the man to halt or drop the bat as he approached Vaughn. Instead, the officers simply watched as the man clubbed Vaughn in the head with the bat and then fled from the scene."

 

The cops told Vaughn, under threat of being shot, to drop his stick but did not tell the other creep to drop his bat, nor did they even bother pointing their guns at the creep. That is unequal treatment under the law, plain and simple.

Those are the alleged facts and exactly one side of the story. Consequently, the one half of it that seems to equal a pay day for the person suing. Forgive me if I wait until I hear the other side of it before I make a judgement.

 

If the officers were in the wrong and it went down exactly as it was stated, it was a travesty. Being that it was two groups and also referred to as a crowd, but only 4 officers, I want to know exactly how many people were on scene that they were trying to control when this happened, and how agitated this 'crowd' was. That all plays into this. Did him repeatedly picking up the stick (was it even really a stick, was it a wooden bat, was it a broom handle, an axe handle, etc) and being ordered to drop it focus all attention from the officers to him? Did anybody even notice the other guy moving in with the bat until after he had swung it? No cop is just going to stand by and let somebody take a swing at somebody with a ball bat like that.

 

Like I said, this story is too light on information to make any kind of judgement on 'unequal treatment'.

[domin8]

I bringing this thread back because I've had an interesting thought. What if you remove the words "police officers" and substitute that with "businesses"? Just how broad can this ruling be made?

 

"The truth of the matter is that you always know the right thing to do. The hard part is doing it." -Norman Schwarzkopf